In Memoriam: Antônio Augusto Cançado Trindade

Antonio Augusto Cançado Trindade, who died at age 74 after a long illness, was unquestionably a towering figure of international law and a profound influence on many. As a professor, researcher, consultant, legal advisor, delegate, and international judge, Cançado Trindade had always kept an intransigent commitment to humanized international law, one sensitive and attentive to the needs of individual human beings. His inexhaustible intellectual curiosity and deep passion for international law were only matched by his kindness and humility.

The scholar

Born in Belo Horizonte (Brazil) in 1947 to a family of medical doctors, Cançado Trindade was fascinated by international law, arts and humanities from a young age. While pursuing a law degree at the Federal University of Minas Gerais (UFMG), he also studied philosophy, cinema, and literature. His interest in international law manifested quite early in law school, to the point that he would skip other classes to go to the library and read the Collected Courses of the Hague Academy. After graduating from the UFMG in 1969 and with the deepening of the military dictatorship in Brazil, he decided to continue his graduate studies in law at Cambridge, where he would stay for six years. During these years abroad, he travelled frequently to Strasbourg and followed the developments in the case-law of the European Court of Human Rights in the 1970s. Cançado Trindade also became the first Latin American to receive the Diploma from the Intenational Institute of Human Rights, from the hands of René Cassin. His doctoral research on the application of the rule of exhaustion of local remedies and its relevance for the protection of human rights earned him the Yorke Prize and became a seminal work on the topic. Apparently, he once told me, that after submitting his 1700-page thesis, the Faculty of Law of the University of Cambridge decided to change the regulations to limit the length of PhD theses to 100,000 words.

Back in Brazil, Cançado Trindade started his teaching career at University of Brasilia in 1978 and later at the Rio Branco Institute (the Brazilian Diplomatic Academy), where he taught different generations of lawyers and Brazilian diplomats for 30 years. His passion for teaching, researching, and communicating knowledge accompanied him throughout his career and became even more salient when he was at the international bench.

Human rights was at the center of Cançado Trindade’s work, from his very first book–––Fundamentos Jurídicos dos Direitos Humanos, which he published in his early twenties–––to the last. His scholarship shaped the study of human rights law in Brazil, to the extent that is virtually impossible to find a book on human rights law in the country that does not mention one of his (several) works. The three volumes of his Tratado de Direito Internacional dos Direitos Humanos are the main reference in the field of human rights law in Brazil, not only extensively debated in academic circles, but also widely cited in judicial and administrative decisions. A prolific researcher, Antonio’s writings were not limited to international human rights law per se, but also included international humanitarian law, international refugee law, the law of international organizations, theory and history of international law, state responsibility, international environmental law, international courts and tribunals, sources of international law, diplomatic and consular law, nuclear disarmament, among others. In his most important book, International Law for Humankind: towards a new Jus Gentium, he tried to bring together these different branches of international law under an overarching, humanized approach.

For me, as an undergraduate law student in Brazil, Cançado Trindade’s writings were always captivating and convincing. In a sea of pessimism and global injustice, his proposals for a more humanized international law sounded persuasive enough. I have probably watched and re-watched all his conferences and lectures available on the internet (apparently, he is the person with more lectures on the UN Audiovisual Library). I still remember the shock I felt when I arrived in Geneva to study international law and suddenly realised that not everyone was enthusiastic about jus cogens, that the pro persona principle was something that only existed in the “distant” Inter-American Human Rights System, and that Humankind was not a subject of international law.

The legal adviser

Cançado Trindade has also left a lasting mark on Brazilian human rights law as such. As legal advisor to the Brazilian Ministry of Foreign Affairs (1985-1990) during the drafting of the 1988 Constitution, he played a key role in the inclusion of a monist perspective into the text of the new constitution. His proposal resulted in Article 5(2) of the Federal Constitution, which establishes the complementarity between the rights and freedoms enshrined in the Constitution and those provided by treaties and other sources of international law binding Brazil. His legal opinions were also fundamental to Brazil’s accession to different human rights treaties in the 1990s, including the Convention against Torture, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture among others.

In the years that followed, Cançado Trindade worked as a legal consultant for several UN agencies and other international organizations, while keeping a good relationship with the Ministry of Foreign Affairs. In 1993, he was nominated director of the Inter-American Institute for Human Rights and later that year joined the Brazilian delegation to the World Conference on Human Rights. Due to his already notoriety in the field of international human rights law, he was elected in 1994 by the General Assembly of the Organization of American States to serve as a judge in the Inter-American Court of Human Rights.

The international judge

In San José, Judge Cançado Trindade saw the opportunity to put into practice what he had studied for two decades. During his mandate, the Inter-American Court developed a sophisticated, forward-looking case-law. Through his individual opinions, Cançado Trindade spearheaded the expansion of jus cogens beyond the prohibition of torture and other ill-treatments to include the principle of non-discrimination, access to justice, the prohibition of enforced disappearances, the proscription of self-amnesty laws, and serious violations of international humanitarian law. Under his presidency (1999–2004), the Court adopted a series of groundbreaking advisory opinions that shaped the debates about the right to information on consular assistance, the children’s rights, and the juridical condition of undocumented migrants. His influence in the jurisprudential developments of the Court was so immense, that some have called it the Corte Cançado Trindade.

In 2008, he was elected to the International Court of Justice with the highest number of votes in the Court’s history (163 votes in the General Assembly and 14 in the Security Council). In 2018, he was the first Brazilian re-elected to the World Court. In the Hague, he gained even more international notoriety for his humanized weltanschauung and unique style. In a court designed to solve inter-state disputes, Cançado Trindade would always make sure to imprint his human-centred perspective. From cases and advisory proceedings concerning the protection of the environment, frontier disputes, self-determination, diplomatic protection, and state immunities to the preservation of marine mammals, nuclear disarmament, genocide, and seizure of documents and data: for him, the needs of individual human beings were front and centre.

While his ideas might have fell into the deaf ears of members of the profession in the Global North, the echoes of Cançado Trindade’s quest for a humanized jus gentium can already be heard in other parts of the globe. An example of that is the recent decision from the Supreme Court of Brazil which relied on his dissenting opinion in the Jurisdictional Immunities case to waive Germany’s immunities in a case involving the sinking of a merchant ship during WWII. Asked about being the smallest of the minorities, he would quote Isaiah Berlin’s Against the Current: one cannot settle for conventional wisdom but needs to seek for ways to improve the human condition. And that’s what he tried to do, swim against the current, in his own way. Instead of hiding under the veil of neutrality and impartiality, he was explicit about his commitments and worldview.

Some have frowned at his style and criticized him for being too prolix and counterproductive, but Cançado Trindade was faithful to his tradition and consistent throughout his career. He brought to bear an unmistakably Mineiro accent that was conciliatory, humanistic and pacifist. Coming from a country where judges are required by law to explain their decisions in writing and court’s deliberations are not only open to the public but also broadcasted on live TV, individual opinions are but natural.

No doubt, Cançado Trindade leaves a huge vacuum, but also a great legacy. Unbothered about the lack of adhesion to his positions by his peers, he hoped to infuse his humanized sensibilities into the new generations of international law scholars (and judging from the reactions to his death, I believe he managed to achieve that). He was always keen to engage with students, especially at the Hague. As he wrote in the final pages of his General Course in the Hague Academy:

We can aspire to a better world, to start with, by learning properly the lessons of the past. It has been in historical moments of crisis, such as the one we currently witness and endure, that one has gathered energy and found inspiration to endeavour to improve the human condition. Human conscience does not capitulate in face of great adversities; quite on the contrary, it awakens as to the pressing need to face new challenges and to construct a better world. […] I dare to express my own confidence that, being faithful to the humanist and universalist vision of the founding fathers of our discipline, the new generations of its scholars will succeed to keep on construct- ing, in the years to come, to the benefit of our descendants, the new jus gentium of this new century, the International Law for humankind.

He is survived by his wife, Carmelita, and his three sons.